2004 PLP 423 (YLR)

(9) Whether rival suit has not been properly valued for the purposes of court-fee and jurisdiction, if so, then what is its proper valuation for both purposes and its effect? OPP (10) Whether rival suit is maintain able in its present form? OPP (11) Whether rival suit ha-, been instituted only to harass plaintiff Muhammad Anwar then whether Muhammad Anwar is entitled to the grant of special costs? OPP (12) Relief. The learned trial Court decreed the suit of the respondent arid dismissed the suit of the petitioner vide consolidated judgment and decree dated 17-5-1995. The petitioner being aggrieved filed two appeals before the Additional District Judge, Toba Tek Singh who decided the appeals by one consolidated judgment and decree dated 18-11-1999 and dismissed both the appeals of the petitioner. Hence the aforesaid revision petitions.

3. Learned counsel of the petitioner submits that one of the grounds for non -suiting the petitioner is that the petitioner did not appear in witness-box which is not in accordance with record as the petitioner appeared before the trial Court and the trial Court recorded the better statement of the petitioner. He further submits that it is the duty and obligation of the First Appellate Court to remand the case to trial Court to provide opportunity to the petitioner to appear in the witness-box as per principle laid down by the Honourable Supreme Court in judgment dated 11-1-1994 in Civil Appeal No.431 of 1992. He further submits that mutation of sale was sanctioned by the Revenue Officer in favour of the petitioner in Jalsa-e-Aam. Therefore, presumption of truth is attached to the mutation of sale in question and both the Courts below erred in law to decide the case against the-petitioner without adverting to this aspect of the case in its true perspective. He further submits that both the Courts below decided the case against the petitioner in violation of law laid down by the superior Courts in the following judgments:--. Abdul Ahad and others v. Roshan Din and others PLD 1979 SC

890. The State v. Ali Ahmad PLD 1977 Revenue 25: He further submits that petitioner is in possession of the land in question but this fact was not considered by both the Courts below. He further submits that the petitioner is living at Lahore. Therefore, he appointed Muhammad Tariq as special attorney--to appear before the trial Court. Muhammad Tariq appeared before the trial Court and proved the contents of the aforesaid mutation of sale. He further submits that both the Courts below decided the case against the petitioner by misreading and non-reading of the record. He further submits that original owner remained with the petitioner, therefore, sale mutation could be considered as gift made by original owner in favour of the petitioner. He further submits that Muhammad Siddiq did not challenge the vires of the sale mutation in his lifetime. He survived after the sanction of mutation for one year and four months.

4. Learned counsel of the respondent submit that mutation of sale was not sanctioned by the Revenue Officer within the prescribed period under the provisions of the Punjab Land Revenue Act, 1967, Therefore, it was rightly held by both the Courts below that sale mutation was not genuine. In support of their contention they relied upon the following judgments: -- Arbab Jamshed Ahmad v. Ghazan Khan and others 1995 CLC

695. Muhammad Rafi and others v, Additional Commissioner, Revenue Sargodha and others 1981 SCMR 1181. Ashfaq Khalid and others v, Muhammad Hanif 1988 SCMR

74. They further submit that it is the duty and obligation of the petitioner to prove the mutation of sale that the mutation was genuine. As the petitioner relied upon the mutation of sale, therefore, the burden to prove the mutation is on the petitioner but the petitioner failed to prove bona fide or otherwise genuineness of the sale mutation. Therefore, judgments of both the Courts below are in accordance with the law laid down in Muhammad Subhan and others v, Mst. Bilqees Begum through Legal Heirs PLD 1994 Karachi

106. They further submit that petitioner failed to produce Revenue Officer and Revenue Official to prove the contents of the sale mutation. Therefore, both the Courts below were justified to decide the case against the petitioner. They further submit that mutation alone could not create right in favour of the petitioner unless and until the petitioner has proved that sale price was paid by the petitioner to the original owner. In support of their contention they relied upon the following judgments:-- Arbab Jamshed Ahmad v. Ghazan Khan and others 1995 CLC

695. Tooti Gul and others v. Irfanuddin 1996 SCMR 1386. On the basis of the judgments of the superior Courts learned counsel of the respondent submit that it is the duty of the petitioner to prove on record that the petitioner had paid the consideration of sale to the original owner but the petitioner failed to prove the consideration. Therefore, sale was not completed in terms of the provisions of law and the principles laid down by the superior Courts in the aforesaid judgments. They further submit that Muhammad Ramzan P.W. specifically mentioned in cross-examination that no such consideration was paid to Muhammad Siddiq in his presence. Similarly P.W.2 admitted in cross-examination that no sale price was paid or bargain was struck in his presence. P.W.3 also did not state in his examination-in-chief that sale consideration was paid in his presence. Therefore, petitioners failed to prove on record that sale consideration was paid by the petitioner to the original owner. They further submit that sale Mutation No.5317 was sanctioned in favour of the petitioner in view of Rapt No.166. The petitioner failed to bring on record said Rapt No. 166 and also failed to produce Revenue Officer/ official to prove the contents of the Rapt and mutation. Therefore, both the Courts below were justified to decide the case against the petitioner. They further submit that sale mutation was procured by the petitioner to debar the respondent from their share in inheritance of original owner Muhammad Siddiq. In support of their contention they relied upon the following judgments:-- Barkat Ali v. Mst. Barkat Bibi and another 1991 MLD 2707. Muhammad Yaqub v. Feroze Khan 2003 SCMR

41. They further submit that it is the duty, and obligation of the petitioner to prove his case on the basis of his evidence in terms of the pleadings and not on the basis of weaknesses of the respondent. In support of their contention they relied upon Mian Iqbal Mahmood Banday v. Muhammad Sadiq PLD 1995 SC

351. They further urge that in case the observation of the First Appellate Court to the extent of non appearance of the petitioner be excluded from consideration even then there is sufficient material on the record to justify the findings of the Courts below. Both the Courts below have given concurrent findings of fact against the petitioner after proper appreciation of evidence. Learned counsel of the petitioner failed to point out any piece of evidence which was misread or non-read by the Courts below. The trial Court has given finding of fact against the petitioner that mutation of sale was not sanctioned in Jalsa-e-Aam. The same was not disturbed by the First Appellate Court.

5. Learned counsel of the petitioner in rebuttal submits that mutation was sanctioned in Jalsa-e-Aam as is evident from the back side of the mutation which is at page 85 of the file. He further submits that mutation was entered by the Revenue Officer at the instance of the original owner. Thereafter the mutation was not sanctioned by the Revenue Officer. As such the petitioner could not be penalized by the inaction of the public functionaries. He further submits that suit of the respondent was not maintainable as the respondent did not claim possession in the prayer clause of the plaint.

6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

7. It is better and appropriate to reproduce the operative part of the impugned judgment to resolve the controversy between the parties:-- "In support of his contention the appellant has examined two witnesses. He himself failed to appear in the witness-box for the reasons best known to him instead he has examined his special attorney. The non-appearance of the appellant/plaintiff in the witness-box would be strongest possible circumstances going to discredit the truth-of case. Perhaps he has no courage to face the cross-examination. In these circumstances an adverse inference could be drawn against the appellant. The appellant/plaintiff is not strong and sufficient to prove the sale transaction in dispute. The First Appellate Court after the above portion decided the appeal against the petitioner after appreciation of evidence on record and approved the findings of the trial Court. The question for determination is that in case the underlined finding/ observation of the First Appellate Court is ignored or not admissible in evidence and not .in accordance with law laid down by the Honourable Supreme Court in the aforesaid judgment, whether the other reasoning to uphold the judgment of First Appellate Court is sustainable in the eye of law or not? It is settled principle of law that the mutation proceedings are intended primarily for fiscal purposes for the collection of land revenues and they are by no means a judicial proceedings in which the right and title in the property is determined. In arriving to this conclusion am fortified by the law laid down in Nirman Singh and others' case 53 IA

220. Meaning thereby the nature of mutation proceedings are summary in nature and intended to keep record of collection of land revenue. These are made under section 42 of the Land Revenue Act and are admissible under section 35 of Evidence Act/Article 49 of Qanun-e-Shahadat Order. 1984. The nature and evidentiary value of these entries had engaged the attention or superior judiciary as back as in 1920 when the Privy Council held so in Nagheshar Bakhsh Singh's case AIR 1920 Privy Council

46. The aforesaid view was approved by the superior Courts in the following judgments: (1) G.N. Gabai's case AIR 1930 Privy Council 93; (2) Gurunathar's case AIR 1948 Privy Council 210; (3) Muhammad and others PLD 1965 Lahore 472; (4) Hakim Khan's case 1992 SCMR 1832. The ratio of the aforesaid judgments is that it is for the party who relies upon these entries to prove the admission in consonance with the principles of Evidence Act which are applicable to prove admissions. The onus of proof of a transaction embodied in mutation is essentially upon the beneficiary of the mutation. It. is also settled principle of law that rebuttable presumption in favour of the party in whose favour mutation effected coupled with the fact that burden of proof lies on the party as mentioned above, in whose favour entry exists and not a party challenging correctness of such entries as per law laid down in Abdul Jalil's case PLD 1964 Peshawar

159. The aforesaid proposition of law is also supported by the law laid down in Nabi Sarwar's case PLD 1995 Pesh.

27. It is also settled principle of law that mere mutation does neither create any right nor extinguish existing right unless the transactions /facts on the basis of which the same has been sanctioned ' if denied' are independently proved to have existed. I am also fortified by the law laid down by this Court in Ghulam Muhammad's case 1992 MLD 1335. The word `sale' is defined by this Court in M. Malik v. Mst.. Razia PLD 1988 Lahore 45 in the following terms:-- "Sale means transfer of ownership in exchange for a price paid or promised or part paid and part promised where sale was made orally and reported to Patwari by parties thereto who had admitted payment of the consideration and delivery of possession on the basis whereof mutation was entered. Sale would be effected and completed on that day and not when mutation in respect thereof was sanctioned. " The salient features of the sale are defined by the Honourable Supreme Court in Ali Muhammad's case 1984 SCMR 94 which are as follows:-- "Sale is defined as being a transfer of ownership for sale price is an absolute transfer of rights in property sold and no rights are left in transferor. Essential elements of sale are (i) the parties; (ii) subject matter; (iii) transfer or conveyance and (iv) price or consideration." According to section 54 of Transfer of Property Act it is to be proved on record that the price /consideration has been paid to the owner. In case consideration/price is not proved on record then sale is not completed in terms of section 54 of Transfer of Property Act. In the present case petitioner failed to prove element of consideration/price on record as is evident from the statement of Muhammad Ramzan P. W. 1 who did not mention a single word qua the consideration/payment m examination-in-chief as well as in cross examination. Similarly, P.W.2 did not mention a single word qua the payment of consideration/price of the land in question by the petitioner to the original owner. P.W.3 Muhammad Tariq simply mentioned that mutation of sale was sanctioned for consideration of Rs.1,50,000 but this witness did not mention a single word that consideration was passed on to the original owner in his presence. .Therefore, judgments of both the Courts below are in accordance with the law laid down by the Honourable Supreme Court in Muhammad Shafi v. Allah Dad Khan PLD 1986 SC

519. I am also 'fortified by the law laid down by the Honourable Supreme Court in Irfanuddin's case 1996 SCMR 1386. It is also settled principle of law that petitioner has to succeed on the basis of evidence produced by the petitioner and cannot take benefit of weaknesses in the evidence of the respondent as per principle laid down by the Honourable Supreme Court in Muhammad Sadiq's case PLD 1995 SC

351. In case the aforesaid underlined observation of the First Appellate Court is excluded from consideration even then the findings of the Courts below are in accordance with the record available before the Courts below. After reappraisal of evidence I uphold the same and I am not inclined to remand the case in view of sufficiency of evidence on record as per principle laid down by the superior Courts in the following judgments:-- Arshad Ameen's case 1993 SCMR 216; Roazi Khan's case 1997 SCMR 1849; Muhammad Qasim's case PLD 2001 Lahore,

9. As mentioned above, both the Courts below have given concurrent finding of fact against the petitioner as the petitioner failed to prove with cogent evidence that sale was executed between the original owner and the petitioner and the petitioner had paid the price/consideration of the land in question to the original owner. In view of what has been discussed above, the revision petitions have no merit and the same are dismissed. S.A.K./M-1996/L Petitions dismissed.